Origins and later developments
Simple question any seafarer asks himself today is, how it comes that world powers hesitate so little to use military force anywhere they like to fight so-called dictatorships (only recently being quite legal and recognized) on the one hand, and fail to notice and fight that tiny group of bandits, which little by little become the major threat of all seaborne trade in the Indian Ocean on the other? How it comes that neither legal nor diplomatic restrictions exist to bomb independent state of Libya, while so many insuperable legal obstacles prevent democratic states to protect their crews and ships from attacks, hijacking, captivity and tortures imposed by armed sea gangs? Why killing of innocent grandchildren of Colonel Gaddafi triggered little sorry and no excuses, but eliminating of bandits who use weapons against unarmed ships’ crews is banned, pending never-ending disputes whether such measure goes beyond the limits of self-defence?
Ignorance of history lessons never did any good. And history of shipping says that since the earliest years of seaborne trade it has been steadily accompanied by the piracy on the high seas. Admittedly, the central powers were not always successful in defending their merchant fleets and ports, nevertheless all European Sovereigns of the past were only too ready to show that no sentence is hard enough for pirates. It goes without saying that legal rules against the pirates were extremely harsh.
The effect of piracy on economy of the Rome Empire, for example, was so serious that the Senate had to invest general Pompeius Magnus with extraordinary proconsular powers (lex Gabinia<) in any Roman province within 50 miles of the Mediterranean Sea and gave him fleet of 500 warships.
In the nineteenth century English judge Dr. Lushington once said (in The Magellan Pirates  1 Sp Ecc & Ad 81? July 26 1853, at p.83):
Now, how am I to determine who are pirates, except by the acts that they have committed. I apprehend that, in the administration of our criminal law, generally speaking, all persons are held to be pirates who are found guilty of piratical acts; and piratical acts are robbery and murder upon the high sea. I do not believe that, even where human life was at stake, our Courts of Common Law ever thought it necessary to extend their inquiries further, if it was clearly proved against the accused that they had committed robbery and murder upon the high seas. In that case they were adjudged to be pirates, and suffered accordingly.(For more case law on piracy follow this link)
What did the learned judge mean when saying: suffered accordingly? English law treated piracy as the petty treason or petit treason which involved the betrayal of a superior by a subordinate � the criminal was to be drawn to the place of execution and hanged. The only crime considered to be graver than the petty treason was the high treason which can only be committed against the Sovereign.
The deterring effect of petit treason punishment was the element of mental influence in anti-piracy measures and another element was military counteraction to pirates on the open seas including destruction of their shore bases. On the other hand, from the days of the lex Gabinia and to our days, extend of piratical activity was largely dependent on the ability of pirates to conduct acts of piracy with a fair chance of getting away with them. This is a main contributing factor to the flourishing of piracy, sometimes described as ‘enabling environment’:
To successfully conduct acts of piracy with a fair chance of getting away with them depends on something which is usually called an enabling environment. Along the Strait of Malacca and the South China Sea, such an enabling environment exists courtesy of geographical facts: the coasts of these waters frequently feature mangrove swamps, and the waters themselves are virtually littered with island and islets… In case of Somalia, its coasts may well run parallel to important sea lines of communication, … , but unlike maritime Southeast Asia, it does not have too many islets providing shelter for pirates lying in waiting. Here, the enabling environment is formed by the failed state itself: the absence of a central authority willing and capable to uphold law and order the dissolution of such law-enforcement agencies into clan-based militia, and squabbling warlords provide an excellent environment for the spread of illegal activities, among them organized crime and terrorism.
Peter Lehr, Violence at sea: piracy in the age of global terrorism, p.11
This factor usually encompass geographical aspect like convenient for concealment bays or islets together with politico-economic aspect of weak centralised power. Usually pirates take advantage of both depending on the specific conditions one of these aspects can prevail over another.
While presence of mighty navy forces in the Gulf of Aden proved to be largely unsuccessful, judging by extraordinary increase of pirates’ activity and extension of the war risk zone from Somali to Sri Lanka, shipping industry succeeded to provide some real protection to the ships’ crews by putting armed guards on board of vessels transiting the war risk zone.
What is next? If there would not be any significant military success in destroying pirates’ motherships, shore bases and blockading pirate fleet within 12-50nm off Somali coast and if political situation in Yemen would follow Somali scenario then we shall expect the following changes:
1. Cruelty and aggressiveness of pirates’ attacks will increase as they would undertake to suppress armed guards resistance. Chances for vessels without armed guard to get away if attacked shall diminish significantly.
2. Most probably heavier weaponry and another tactic will be used by pirates to undermine advantage of shooting point of armed guards.
3. Range of pirates’ attacks will expand further to the south and to the east � to locations where pirates will expect no presence of armed guards on board.
4. Treatment of captives will deteriorate rapidly with tortures become common practice.
5. Full crews would rarely be relived on payment of ransom, for the purpose of further trading of remaining crewmembers, thus getting several ransom payments attributed to single hijacked vessel.
6. When it will become clear that ransom payment would not guarantee crew release shipping industry most probably will face increasing resistance from crews to go through the Indian Ocean.
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